[00:00:00] Speaker 11: The United States Board of Appeals of the Ninth Circuit is now in session. [00:00:16] Speaker 11: Good morning. [00:00:16] Speaker 11: It's my pleasure to welcome all of you to our Browning courthouse here in San Francisco. [00:00:22] Speaker 11: This is the time set for oral argument. [00:00:25] Speaker 11: We're hearing en banc in the case of Health Freedom Defense Fund. [00:00:30] Speaker 11: versus Albert Carvalho. [00:00:34] Speaker 11: Council are ready to proceed. [00:00:35] Speaker 11: You may come forward. [00:00:40] Speaker 06: Good morning, Your Honors. [00:00:42] Speaker 06: May it please the Court? [00:00:43] Speaker 06: My name is Scott Street, attorney for the plaintiff's appellants in this case, and I understand that we have 30 minutes allocated per side. [00:00:51] Speaker 06: I'm going to hope to reserve 10 of that for rebuttal, if I may. [00:00:56] Speaker 06: Your Honors, when I [00:00:59] Speaker 06: When I first heard that the court had granted en banc review in this case, I had mixed emotions. [00:01:07] Speaker 06: On the one hand, we have clients, the plaintiffs, who have been fighting for more than three years now to remedy the effects of the policy that they're challenging in this lawsuit. [00:01:22] Speaker 06: They're still trying to remedy the effects. [00:01:25] Speaker 08: Does the record say anything about their employment status? [00:01:28] Speaker 08: Are they terminated? [00:01:30] Speaker 08: Are they reinstated? [00:01:31] Speaker 08: Are they seeking reinstatement? [00:01:32] Speaker 08: What's the status? [00:01:33] Speaker 06: That's a good point, Your Honor. [00:01:34] Speaker 06: And so with some of the plaintiffs, several of the plaintiffs were terminated. [00:01:39] Speaker 06: It's alleged in the second amended complaint, I believe, at the very minimum, Sandra Garcia and Johannes Sopongian were terminated. [00:01:47] Speaker 06: I know that Mr. Sopongian, [00:01:50] Speaker 06: is who was a teacher's aide, person who was terminated, told that he couldn't work remotely, that there was no point in him seeking an accommodation, has sought to be rehired, but has not been rehired for the full-time position that he had before he was terminated. [00:02:07] Speaker 06: I think he is at this point working maybe one day a week as a substitute teacher. [00:02:13] Speaker 09: Is any of this in the record? [00:02:14] Speaker 06: Yes. [00:02:15] Speaker 09: You mentioned there are recent attempts he's been trying to be rehired. [00:02:18] Speaker 09: Is that in the record? [00:02:18] Speaker 06: The recent events are not in the record because the second amended complaint, I want to say dates back to 2022. [00:02:24] Speaker 06: So at that point, Mr. Sapogian had been terminated. [00:02:28] Speaker 06: The recent events, I think if we were to go back to the district court, would be included in an updated complaint. [00:02:35] Speaker 06: And quite frankly, your honor, that doesn't even account. [00:02:37] Speaker 06: That's just one example. [00:02:38] Speaker 06: There are many, many others. [00:02:40] Speaker 06: One of our clients, [00:02:41] Speaker 06: the California Educators for Medical Freedom represents hundreds of additional people who have been either terminated, lost benefits, and so forth. [00:02:52] Speaker 06: So one of my desires, and this is a double-edged sword, I guess, is we were very eager to go back to take this case back to the district court as quickly as possible. [00:03:06] Speaker 06: We are still eager to take this case back to the district court, especially in light of [00:03:11] Speaker 06: the court's shifting analysis of the 11th Amendment sovereign immunity issues and its indication that it would be willing to reconsider that analysis with respect to school districts. [00:03:24] Speaker 06: So if we do go back to the district court, if we get the opportunity to file an amended complaint, we would seek, in addition to the relief we sought before, which I don't think is moot, as explained in our briefs, we would also seek to allege a claim for damages and to litigate [00:03:41] Speaker 06: the issue of whether now under the Cohen versus State Bar decision, the court's analysis of school district immunity for schools in California should change. [00:03:55] Speaker 03: But as it stands right now, there is no claim for monetary damages. [00:03:59] Speaker 06: There is no claim, Judge Wardlaw, for monetary damages. [00:04:01] Speaker 03: What about, Mr. Street, is there, in their claims for relief, is there a request for reinstatement? [00:04:09] Speaker 06: There is not an explicit request for reinstatement. [00:04:13] Speaker 06: I didn't draft the complaint, so I would have included one. [00:04:16] Speaker 06: And if we go back and we have an opportunity to file an amended complaint, we would include a specific relief for reinstatement for the people who have not been reinstated, of course. [00:04:25] Speaker 06: And then in addition, we would seek damages, or at least we would seek damages and seek to litigate the issue of whether the district has immunity. [00:04:34] Speaker 06: under the court's new sovereign immunity standard. [00:04:37] Speaker 01: Well, why weren't some of those things requested initially? [00:04:40] Speaker 01: It seems like they'd been terminated, right, at the time? [00:04:45] Speaker 06: Some had been terminated, Your Honor, at the time the complaint was filed. [00:04:49] Speaker 06: If you look at the allegations in the Second Amendment complaint that relate to the individual plaintiffs, two had been, I believe two had been terminated, several had been threatened with termination. [00:05:00] Speaker 06: I can't, again, as the person who didn't [00:05:02] Speaker 06: draft that complaint at the time it was drafted. [00:05:05] Speaker 06: I can't say why it wasn't included, although I do think that there was, I do recall there being a reference in the second amended complaint, which is the operative complaint about the plaintiffs potentially seeking leave to amend to include those claims at a certain point in time. [00:05:22] Speaker 06: I believe the complaint refers to [00:05:24] Speaker 06: Issues regarding qualified immunity. [00:05:26] Speaker 06: I think it meant sovereign I think they meant sovereign immunity because I think that this issue Obviously the court hadn't issued the cone decision when the second amended complaint was filed that was filed in 2022 cone if I remember correctly was issued in 2023 so those are new claims that we would You know we would streamline and we would have history It's been [00:05:52] Speaker 11: I think 17 months since the school district's policy has been rescinded. [00:05:59] Speaker 11: I guess what is your best argument or what makes you think that it is still reasonably expected to be reinstituted? [00:06:09] Speaker 06: The challenge policy? [00:06:11] Speaker 06: The policy that we're challenging? [00:06:13] Speaker 06: Yes. [00:06:13] Speaker 06: Well, I think, Your Honor, I think that gets into the circumstances under which the policy was repealed, including statements that were made. [00:06:22] Speaker 06: I'm sure Judge Collins will remember this, statements that were made by the district's lawyer at the oral argument in front of the panel, as well as the circumstances following that in which the district, I would say hastily, repealed the policy and did so with statements by board members that [00:06:40] Speaker 06: Did not, I would not say stated explicitly that the district would reinstate this policy. [00:06:47] Speaker 01: But you have to show what a reasonable expectation. [00:06:51] Speaker 01: So assume, let's just assume that for purposes of this, that I agree with you that they, they held onto it longer than anyone else and they waited till after oral argument and that it didn't go well. [00:07:06] Speaker 01: And there were comments that were made that would indicate that there was going to be a whole bottle of whoop was going to come after that. [00:07:18] Speaker 01: And so they attempted to avoid the jurisdiction of the court and repeal it and all of those comments. [00:07:24] Speaker 01: But you still, for that doctrine, have to show a reasonable expectation that they would reinstate the mandate. [00:07:31] Speaker 01: What is the evidence before us that there is a reasonable expectation, other than the fact that they were very stubborn and clung to it longer than anyone else? [00:07:43] Speaker 06: Well, Judge Callahan, I would emphasize two things. [00:07:47] Speaker 06: First of all, I would frame the issue you're discussing carefully, because under the Supreme Court's case law, and particularly the case I'm thinking of as the LA County versus Davis case, [00:07:59] Speaker 06: the voluntary, for that voluntary cessation doctrine to apply. [00:08:03] Speaker 06: First of all, the burden is on the party claiming mootness. [00:08:06] Speaker 06: The burden is on the school district to show that it's not reasonably likely that this policy will be reinstituted. [00:08:13] Speaker 06: And I think what the panel did, I think the panel did a very good job of this, is saying, well, we're going to look at what you did in light of your burden. [00:08:21] Speaker 06: The second key point here is, and this is, I would say, an overlooked part of the voluntary cessation [00:08:27] Speaker 06: Doctrine is not only does the party seeking in this case the district Seeking to have the case thrown out of mootness have to show that the pop the challenge policy is not Reasonably likely to be reinstituted, but it also has to take steps. [00:08:41] Speaker 06: This is the second part of that doctrine It has to take steps to permanently Reverse the effects of the challenged policy which is one of the reasons that I led with that in my argument because the district has not done that and [00:08:56] Speaker 06: Period. [00:08:56] Speaker 06: Full stop. [00:08:57] Speaker 06: The district has not, so for example, if this had been a case where the district had taken good faith efforts before or before or around the time of oral argument to repeal this policy and said, look, we did this in an emergency situation. [00:09:13] Speaker 06: We understand things have changed. [00:09:15] Speaker 06: We're not likely to do it again. [00:09:17] Speaker 06: And we're going to take steps to reinstate the people who were fired. [00:09:21] Speaker 06: to compensate the people who were damaged by our actions, including people like the plaintiffs, the named plaintiffs in this case, who were not teachers, electricians, healthcare workers, teachers' aides. [00:09:33] Speaker 06: If they had done all of those things and made an effort to reverse the effects of the challenge policy, I don't think we would be here. [00:09:41] Speaker 03: Mr. Streeve, what case do you have that says that the school district has to go beyond repudiation and also redress all the potential injuries from the past implementation of the policy? [00:09:54] Speaker 06: Well, I don't think they have to do all of that, Judge Wardlaw, but the case I'm reading from is the Davis case. [00:09:59] Speaker 06: This is the Supreme Court case, 440 U.S. [00:10:03] Speaker 06: at 631. [00:10:05] Speaker 06: It was cited on page 72022 of the panel's opinion. [00:10:12] Speaker 06: First, it must be reasonably clear that the challenge practice will not happen again. [00:10:16] Speaker 06: Second, any effects of the alleged violation must be permanently reversed. [00:10:21] Speaker 06: This is, quote, a formidable burden and holds for governmental defendants no less than for private ones. [00:10:27] Speaker 11: Was that a COVID case? [00:10:28] Speaker 11: Was that a COVID-19 case? [00:10:30] Speaker 06: No, that's LA County versus Davis, a case from a Supreme Court case from, I want to say the late, early, early 90s, 80s or 90s. [00:10:40] Speaker 11: I'm curious. [00:10:40] Speaker 11: Can you point to any cases in the COVID-19 context in which a policy was rescinded and [00:10:51] Speaker 11: the court held that the voluntary cessation exception did apply. [00:10:57] Speaker 06: Did it apply to moot the case or to not moot the case? [00:11:00] Speaker 11: Did apply. [00:11:01] Speaker 11: The voluntary cessation did apply. [00:11:04] Speaker 06: Well, I know that there were some cases decided by the same panel that found that the government's actions were very different then. [00:11:14] Speaker 06: Now, as to one where the case has not been declared moot, I can't think of one off the top of my head. [00:11:22] Speaker 06: I also, Your Honor, I can't think of a case where you had conduct like what we saw here that was, and I think the panel got this right, really egregious and represented not so much a good faith effort to rescind the policy and to make the plaintiffs whole, to at least take some steps to make the plaintiffs whole, but you saw something that was [00:11:51] Speaker 06: more of an effort to just avoid the consequences. [00:11:55] Speaker 01: Let's say hypothetically, let's say if I believe that at the time that the policy went into effect, I would support, it was very different times. [00:12:05] Speaker 01: Everyone back, we didn't know, you know, the science was different. [00:12:11] Speaker 01: People, we didn't, we were hopeful that the vaccines would work and all of that. [00:12:17] Speaker 01: But let's say at some point I would have said that LA was right. [00:12:22] Speaker 01: But then hypothetically, let's say that at a point that they didn't need it anymore, that things had changed and that I agree with you, let's say hypothetically that I agree with you that their conduct was egregious. [00:12:38] Speaker 01: How do you still win under that if I don't think they're going to reinstate the policy again? [00:12:49] Speaker 06: Well, I would go to the second step then of, first of all, understanding that it's the government's burden to show that, of course, Judge Callahan. [00:12:55] Speaker 06: But if you were to agree with them on that. [00:12:57] Speaker 01: But let's say at those junctures, but then I'm with you on that the conduct was egregious. [00:13:05] Speaker 01: But I'm not sure about what the evidence is. [00:13:09] Speaker 01: Is the evidence that they'll do it again is because their past conduct is so bad that we know that [00:13:16] Speaker 01: They're going to, they're always going to do the wrong thing. [00:13:19] Speaker 01: Is that the evidence? [00:13:20] Speaker 06: I don't think it's, I don't think it's just that their past conduct is so bad, Judge Callahan. [00:13:26] Speaker 06: I think that it's, I think you have to interpret the district's conduct in light of its content, in light of the actions it took contemporaneously. [00:13:34] Speaker 06: when it moved to rescind the policy. [00:13:37] Speaker 06: I think that is critical. [00:13:39] Speaker 06: The timing, the fact that it was, this was done out of the blue. [00:13:44] Speaker 06: I mean, it was done in September, so at the early end of the school, at the early portion of the school district, but schools in Los Angeles start school in early August, and so this was not a policy. [00:13:54] Speaker 06: I don't think the record shows that this was a policy change that was coming. [00:14:00] Speaker 06: It was a policy change. [00:14:02] Speaker 06: made hastily in reaction to what I believe the district thought was an adverse ruling. [00:14:08] Speaker 04: Counsel, but I think that's going to what Judge Callahan is asking, which I have the same question. [00:14:13] Speaker 04: You're just focusing on what they did here, but how do we know what they're going to do in the future? [00:14:19] Speaker 04: Is there anything in the record indicated to us that they are going to reinstate this policy in the future? [00:14:25] Speaker 06: Well, nothing, Your Honor, beyond what we know about how they repealed it. [00:14:30] Speaker 06: So I think it is [00:14:31] Speaker 06: And I don't want to speak for the panel, but I think what was in the panel's mind, and having reread that decision last night, I think the panel was correct in assessing that, look, we can't, yes, we don't have a statement from the district that says we will do this again. [00:14:47] Speaker 06: And I'm not even sure we have a statement from district that says we reasonably expect to do this again. [00:14:55] Speaker 06: However, we also don't have anything to the contrary, which is what [00:15:01] Speaker 06: evidence you did have in some of the cases, including the cases that were decided by the panel that Judge Commons was on. [00:15:09] Speaker 06: These cases were all heard en masse in Seattle back in 2023. [00:15:14] Speaker 06: And I think that the panel saw a difference between the things that the governments did and said in cases that were declared to be moot and in this case and one other, which I think were [00:15:28] Speaker 06: where the evidence suggested that the government's actions, the district's actions were not as, did not reflect this sort of good faith change in policy and a, with a, I want to call it an explicit promise, but at least an implied promise that this is not going to happen again. [00:15:45] Speaker 06: That's the evidence that I'm drawing from. [00:15:50] Speaker 06: And the other thing that I think is important, and this gets to the second part, [00:15:54] Speaker 06: And again, understanding that this is the government's burden. [00:15:57] Speaker 10: Council, I'm going to switch gears here to the merits. [00:16:02] Speaker 10: So I'd like you to explain to me why there is a need for a public health measure like the one at issue here to prevent the spread of disease. [00:16:21] Speaker 10: And why Jacobson, which I believe is still binding law, why doesn't Jacobson make it clear, including as the state's amicus brief argues, that a vaccine need not provide immunity and prevent transmissions? [00:16:40] Speaker 10: And why would, even if you're right, [00:16:44] Speaker 10: that you've made a credible allegation. [00:16:47] Speaker 10: Why is it relevant that you've alleged that this doesn't prevent the spread of disease? [00:16:54] Speaker 06: Given Jacobson. [00:16:56] Speaker 06: Sure, sure, Judge Bennett. [00:16:57] Speaker 06: Given, so I consider this really in [00:17:02] Speaker 06: I take those questions in context because what I look at, and bearing in mind that we are here on a pleading motion. [00:17:10] Speaker 06: Yes, we are. [00:17:11] Speaker 06: Motion for judgment on the pleadings, which is the functional equivalent of a 12b6 motion to dismiss. [00:17:16] Speaker 06: And so I look at the analysis, and I go back to what this court said en banc in Judge Reinhart's opinion in the compassion and dying case, which then led to the Supreme Court's decision in Washington versus Glucksburg, which is that [00:17:32] Speaker 06: When you have a substantive due process claim involving an individual interest in bodily autonomy, an adult's interest in saying, I get to choose what to do, what I put into my body, you are not applying rational basis review. [00:17:50] Speaker 06: Now, to be fair, you're also not applying strict scrutiny. [00:17:53] Speaker 06: What you are doing, and this is, I really think Judge Reinhart wrote about this eloquently in that en banc opinion is, [00:18:02] Speaker 06: what you have, the test you have, is a balancing test. [00:18:06] Speaker 06: And the balancing test is, this is not pulled out of thin air, this is, as Judge Reithart said, this is fully consistent with the Supreme Court's decisions starting actually in Jacobson, which has repeatedly been called a balancing [00:18:20] Speaker 06: case, not just by this court, but by other courts. [00:18:23] Speaker 10: Well, if we were to hold that, if or if we were to believe that as to vaccines, the law has not materially changed since Jacobson, why don't you lose? [00:18:36] Speaker 06: Well, because of what we alleged about what these shots do compared to the shots that were at issue in Jacobson. [00:18:42] Speaker 06: So in Jacobson, you had a smallpox vaccine that [00:18:46] Speaker 06: They were evidentiary. [00:18:47] Speaker 06: There was an evidentiary presentation. [00:18:48] Speaker 06: There were findings of fact made by a judge in that case that the smallpox vaccine prevented the public, didn't just prevent the person who received it, prevented the spread of smallpox to the public. [00:19:03] Speaker 06: And you had other factors that played an important part in that analysis. [00:19:10] Speaker 06: It wasn't just that this was a vaccine, quote unquote vaccine, [00:19:15] Speaker 06: the evidence showed stopped the spread, but it was, there was evidence that there was an opt-out. [00:19:21] Speaker 06: There was evidence that there were no potential consequences, at least no serious consequences from the shot. [00:19:26] Speaker 06: All of those factors get combined and are part of the balancing test. [00:19:32] Speaker 06: So I don't think you can say, Judge Bennett, in this case, that, look, the evidence may show what it will show. [00:19:40] Speaker 10: I think it's- I think you and I read [00:19:42] Speaker 10: Jacobson differently about whose role it is, which branch of government does the weighing. [00:19:48] Speaker 10: But I understand your point. [00:19:51] Speaker 06: Well, I think, and I think this is, again, the panel decision, the panel majority, I think, did a good job, as did Judge Collins and his concurrence, talking about the preliminary nature of this analysis. [00:20:05] Speaker 06: And when you have to assume the truth of our allegations and liberally construe them in our favor, [00:20:11] Speaker 06: And you consider the other factors that come into play in the balancing test. [00:20:16] Speaker 06: And that analysis has never changed. [00:20:17] Speaker 06: I know the result that this court reached en banc in the compassion and dying case was reversed by the Supreme Court. [00:20:27] Speaker 06: But the reasoning has never been disavowed. [00:20:29] Speaker 06: And it has been consistent throughout the Supreme Court's bodily integrity, bodily autonomy cases. [00:20:35] Speaker 06: When you consider what we have alleged about these shots in this case, which is [00:20:41] Speaker 06: that they aren't preventing spread. [00:20:42] Speaker 06: They're essentially a medical treatment. [00:20:44] Speaker 06: So there's something that only benefits the recipient when you consider that there's no opt-out available, as there was in Jacobson. [00:20:55] Speaker 06: The balancing test, at least in the pleading stage, applying the proper liberal standard, we can satisfy that. [00:21:03] Speaker 06: And I think that is what we are seeking to do, and we should have that opportunity. [00:21:07] Speaker 06: I see I'm at about 10 minutes left, so unless [00:21:10] Speaker 06: If you have any questions, I'll reserve the rest of my time. [00:21:14] Speaker 06: Thank you. [00:21:38] Speaker 00: May it please the court. [00:21:39] Speaker 00: Keith Jacoby. [00:21:41] Speaker 00: I'm here today to represent Los Angeles Unified School District and the named administrators. [00:21:49] Speaker 00: Your honors. [00:21:51] Speaker 00: The overwhelming weight of Supreme Court Ninth Circuit and Sister Circuit authority in literally hundreds of COVID related cases have found as this panel should find today that in a case about a long expired vaccine policy [00:22:08] Speaker 00: is moot. [00:22:10] Speaker 00: There is simply nothing to decide, and that is jurisdictional. [00:22:13] Speaker 08: What about a request for reinstatement? [00:22:15] Speaker 08: We've said that reinstatement is prospective injunctive relief and can be sought consistent with 11th Amendment immunity. [00:22:24] Speaker 08: They've said that they'll amend to the extent it's not there, they'll amend to assert that. [00:22:31] Speaker 08: So how can it be moot if there's relief that can be granted? [00:22:34] Speaker 00: I would suggest that there is, if the court looks at the entire litigation history of this case, there have been many opportunities to do just that. [00:22:43] Speaker 00: There were three complaints filed in this case. [00:22:46] Speaker 00: There was an opportunity to amend after Judge Fischer's final ruling. [00:22:50] Speaker 08: There was an opportunity to add- You think you can change the policy and they just have to be stuck? [00:22:55] Speaker 08: They can't react to that and say, well, now that you're changing the policy and you're taking that off the table and trying to kill the case, now I'll assert this claim. [00:23:04] Speaker 08: Think don't get to do that. [00:23:07] Speaker 10: I do not think broad requests for injunctive relief don't already cover this I do not I do not think they do I do not if if they had alleged in the complaint we want really I'm not sure exactly of the timing of when they lost their jobs But if if they had alleged we want reinstatement Would you agree that the rescinding of the vaccine would not render the case mood if they had made that claim explicitly? [00:23:33] Speaker 00: I just think that's a different lawsuit [00:23:34] Speaker 10: So I take then your answer to my question is yes, it wouldn't be moot if they had made that claim? [00:23:43] Speaker 00: If they had made that claim, there would be a different question to be addressed today, but that is not what was pled in this case. [00:23:49] Speaker 08: Can you answer Judge Bennett's question? [00:23:52] Speaker 08: I mean, you can't just fight the hypothetical. [00:23:54] Speaker 08: Would the case be moot if they had clearly stated a claim for reinstatement in the complaint, yes or no? [00:24:00] Speaker 00: It would remain moot with respect to the vaccine policy itself, which is the core thing that was being challenged in this case. [00:24:08] Speaker 08: How could that be true? [00:24:09] Speaker 08: Their request for reinstatement would turn on the validity of the grounds on which they were fired, which is the policy. [00:24:15] Speaker 08: So it would not be moved. [00:24:17] Speaker 00: Well, I would suggest respectfully that that's speculation because the court, the district in the spring of, in the fall of 2023, [00:24:27] Speaker 00: said this policy is no longer needed to protect the health and safety of students. [00:24:31] Speaker 00: So the consideration of whether any particular employee, whether they're student facing or non-student facing, that would rise or fall on its own merits. [00:24:39] Speaker 00: I mean, my opponent said, well, these are all sorts of people. [00:24:44] Speaker 00: Some of them are electricians. [00:24:45] Speaker 00: Some of them are student facing. [00:24:46] Speaker 00: The policy itself, [00:24:48] Speaker 00: was designed to do something that, as a matter of law, the district was required to do, which is to protect the safety of students. [00:24:59] Speaker 10: I'm having trouble understanding your answer to Judge Collins' question. [00:25:04] Speaker 10: If the policy violates the constitution and somebody seeks reinstatement or related equitable relief, it seems to me they would win. [00:25:19] Speaker 10: If the policy is entirely valid in that circumstance, it seems to me that they would lose. [00:25:28] Speaker 10: But if one were to either say they would have the right to amend or read, [00:25:32] Speaker 10: the request for relief, injective relief broadly, it's hard for me to see how the case is moved, regardless of how the merits come out. [00:25:43] Speaker 00: Well, I mean, this is the problem of using a 2025 lens to decide whether something that happened in 2022 was inappropriate or appropriate. [00:25:55] Speaker 00: I don't think that, I think this court, [00:25:58] Speaker 00: both on the merits and with respect to mootness can decide that this policy was a legitimate policy. [00:26:03] Speaker 00: It was rational. [00:26:04] Speaker 01: Well, but let me ask you this. [00:26:05] Speaker 01: Okay, let's assume that, hypothetically, that it was a legitimate policy at the time. [00:26:11] Speaker 01: But if LA held on to it longer than anyone else, and I think there is some evidence of the record to that, and also Mr. Howard submitted a declaration that after oral argument, Ms. [00:26:24] Speaker 01: Michaels asked him, what are you going to do when we rescind the mandate? [00:26:28] Speaker 01: Ms. [00:26:29] Speaker 01: Michaels also filed a declaration, but she did not dispute that she made that comment, given the sequence of events. [00:26:36] Speaker 01: including that the proposal to rescind the mandate was submitted to the district board the same day as the oral argument, why shouldn't we draw the inference that you decided to rescind the mandate in an attempt to manipulate the court's jurisdiction and avoid an adverse decision and you've done nothing at this point. [00:26:55] Speaker 01: You held on to it longer than anyone else. [00:26:57] Speaker 01: You waited till the bitter end and there's nothing that's happened to indicate that you, [00:27:04] Speaker 01: that if you held on to it too long, that you have tried to ameliorate any of the situations, why shouldn't they have a chance? [00:27:12] Speaker 00: Well, I think we should consider the actual sequence. [00:27:15] Speaker 01: It seems like you're digging in, and if being that obdurate, why won't you just do this again? [00:27:21] Speaker 00: Well, I would point out that the Ninth Circuit in Donovan versus Vance held that a Department of Energy [00:27:29] Speaker 00: Vaccine policy was moot. [00:27:31] Speaker 00: It was rescinded while Donovan versus Vance was on appeal while it was being considered by this court in 2023 I would point out and I believe it's in the record that the federal federal and state emergencies were lifted in the end of February and the end of May of 2023 the school year roughly starts in September of 2023 the idea that this policy was [00:27:56] Speaker 00: held on to longer than anyone else into the bitter end. [00:27:58] Speaker 00: I think if the court reviews the body of COVID jurisprudence, you will see that most vaccine mandates were rescinded sometime in 2023. [00:28:08] Speaker 00: And none of that changed the results under the rational basis review test. [00:28:14] Speaker 00: The appellants are taking a lot of liberties here by saying. [00:28:17] Speaker 08: Isn't it true that the motion before the board to rescind this mandate was filed the afternoon [00:28:25] Speaker 08: of the date of oral argument. [00:28:27] Speaker 08: So after the argument, that afternoon, the motion of resim was filed. [00:28:30] Speaker 08: Is that correct? [00:28:30] Speaker 00: That is certainly possible, but I don't believe there's anything in the repetition and revating review standard that obligated the district to keep the policy in place for one minute longer than it felt was necessary. [00:28:43] Speaker 08: I think what Kellyanne's concern is, you know, manipulation of the court's jurisdiction. [00:28:49] Speaker 08: And it happened twice in this case, [00:28:51] Speaker 08: You evaded the first lawsuit, got it dismissed, reinstated the policy, and then on the day of the argument when you didn't think it went well, you then [00:29:01] Speaker 08: Drop the repeal again and then come in and say it's moot. [00:29:04] Speaker 00: Well, respectfully, Your Honor, the first time the policy was changed was in the very beginning of the crisis. [00:29:09] Speaker 00: That was in 2020. [00:29:10] Speaker 00: That's when the schools were closed. [00:29:13] Speaker 00: That's when there was no instruction at all. [00:29:15] Speaker 00: And so to take two points, if you look at the Ninth Circuit cases and Supreme Court cases that talk about evasion and evading review and possibility of repetition, they typically deal with disputes that are on a cadence like [00:29:30] Speaker 00: blind students needing to take the bar exam, or as in a case that I think you worked on, Judge Collins, that had an injunction where neighbors were fighting with each other and one of their guns was taken away, and your decision said, well, there is a possibility that this could recur, they could get their gun back, neighbors will keep fighting. [00:29:49] Speaker 00: So here here we sit in March of twenty twenty twenty five and there is no evidence that the district has any intent to reinstitute the policy. [00:30:00] Speaker 00: And I would suggest that there is nobody in this courtroom there is nobody outside of this courtroom who could predict that a pandemic will occur again. [00:30:09] Speaker 00: And repeatedly the Ninth Circuit has said in case after case after case including Brock versus Newsom which was a much more draconian measure closing schools altogether. [00:30:19] Speaker 00: The court has said that public safety measures like the vaccine, including the vaccine policy, allowed the schools to reopen. [00:30:29] Speaker 00: It is just painfully difficult to try to judge 2021 through 2023 actions through the lens [00:30:37] Speaker 00: of 2025. [00:30:39] Speaker 08: Can I ask you a question about the cone issue? [00:30:42] Speaker 08: Are you aware of any other locally elected governmental body that enjoys 11th Amendment immunity other than California school districts? [00:30:53] Speaker 00: I cannot give you an answer of that one way or the other, but what I can say is two things. [00:30:59] Speaker 00: One, there has been a number of cases involving Arizona and Nevada school districts where there was a detailed analysis that said the way that schools are funded and the way that judgments are rendered. [00:31:12] Speaker 00: are very, very different from California. [00:31:14] Speaker 00: California's constitution and California's education code scrupulously manage every aspect of the school district's operation from how the superintendents are chosen to what kind of textbooks are being read in the schools. [00:31:30] Speaker 00: very highly regulated arm of the government. [00:31:34] Speaker 08: Cone put some significant weight on how the body is constituted and selected. [00:31:39] Speaker 08: It's very odd to say that a locally elected body is actually the state of California. [00:31:46] Speaker 08: That just seems very peculiar. [00:31:51] Speaker 08: Local officials elected by the public are part of the government too, but that's that was my question Are you aware of any other locally elected official anywhere in the country who enjoys? [00:32:01] Speaker 08: 11th with the entity and joints 11th amendment immunity well the California bar examiners are found out 11th amendment immunity That's a statewide entity. [00:32:10] Speaker 08: I mean my point is a locally elected entity enjoying enjoying the 11th of immunity of states and [00:32:18] Speaker 00: Am aware of no case that is a question. [00:32:21] Speaker 03: I'm just not sure I'm LA County sheriffs Haven't they been held to be an arm of the state I? [00:32:28] Speaker 00: Believe that's true. [00:32:29] Speaker 00: I should know that they are locally elected right The sheriff is elected. [00:32:33] Speaker 03: Yeah, it's elected by the county right. [00:32:35] Speaker 03: Yeah, and there's a lot of case on that [00:32:38] Speaker 03: Right? [00:32:38] Speaker 00: Yes. [00:32:39] Speaker 00: Okay. [00:32:40] Speaker 00: I certainly believe that the DC test that was adopted in the Cone case. [00:32:46] Speaker 08: Does the LA County Sheriff's Department, isn't it routinely sued under 1983? [00:32:50] Speaker 08: It doesn't assert 11th Amendment immunity and doesn't have it, does it? [00:32:55] Speaker 00: I don't know the answer to that question. [00:32:59] Speaker 09: Counsel, could I actually get back to the, maybe if you're away from the 11th Amendment, just to get back to the mootness question, just so I understand your position. [00:33:05] Speaker 09: So there's been a lot of discussion about what counsel may have said or done back in 2023. [00:33:11] Speaker 09: My understanding of mootness doctrine is we have to evaluate whether a case is moot today. [00:33:16] Speaker 09: So whatever happened in 2023, maybe that's atmospheric evidence of some kind, but it depends on what happens. [00:33:25] Speaker 09: Is the case moot today? [00:33:27] Speaker 00: Isn't that the inquiry? [00:33:28] Speaker 00: Believe the case is moot. [00:33:30] Speaker 00: That is the correct inquiry I believe the case is moot today because all of the cases that discuss this say that you have there must be jurisdiction at all points my Opponent points out. [00:33:40] Speaker 00: This is a pleading motion there in their view this case is just starting so we're gonna have a 2027 trial about the bona fides of the way the district acted in 2021 and 2022 under completely different conditions and I would point out that [00:33:54] Speaker 00: That, in terms of repetition well what repetition are we talking about exactly the covert 19 vaccines if you were to go down to the local CVS are completely different today it's a completely different species of vaccine, a completely different menu of vaccines, then we're available in 2021 and 2022. [00:34:13] Speaker 00: Children are able to get the vaccine. [00:34:15] Speaker 00: Children were not able to get the vaccine. [00:34:17] Speaker 03: Council, I'm curious. [00:34:19] Speaker 03: I get the drift of what Judge Owens is asking, but what do we look at? [00:34:25] Speaker 03: What can we look at and what can we take judicial notice of from which we could make a decision today? [00:34:33] Speaker 03: as to whether the case is moved today. [00:34:36] Speaker 03: I suppose one of the things we could look at is the fact that the school district has not reenacted the policy. [00:34:44] Speaker 03: Correct. [00:34:45] Speaker 03: What else can we look at on this record? [00:34:48] Speaker 00: The public health situation is entirely different today than it was in 2023. [00:34:54] Speaker 00: Vaccines are available to people of all ages. [00:34:57] Speaker 00: They're widely available. [00:34:59] Speaker 00: There are no restrictions. [00:35:01] Speaker 00: in the record regarding instruction. [00:35:04] Speaker 00: All of the other arm of the government and even non-arm of the government entities that have had cases litigated have not reinstituted policies on much more robust records than this one. [00:35:17] Speaker 00: If you look at the Rutgers and Indiana cases, those were preliminary injunction cases by this [00:35:23] Speaker 00: third circuit and 173 pages of rational basis review, no likely to repeat. [00:35:30] Speaker 09: Are you aware of any COVID vaccine requirements anywhere in the world right now? [00:35:38] Speaker 00: I certainly don't think there's any in the record and I'm not aware of any. [00:35:41] Speaker 09: So we would have to, for the case not to be moot, we would have to say despite that, it's reasonably clear that LA Unified would put it back in place when there were no other in the world. [00:35:52] Speaker 09: I agree with that. [00:35:53] Speaker 02: And one other point I would make about... Didn't the district expressly reserve the right to be able to reinstitute this mandate when it revoked the mandate after all argument? [00:36:03] Speaker 00: I think they didn't exclude the possibility that if another crisis... They didn't exclude. [00:36:07] Speaker 02: It specifically says, if health conditions necessitate doing this again, we're going to do that. [00:36:12] Speaker 02: I'm wondering, I mean, our case law says that on mootness under this exception, if a government entity remains legally and practically able to return to the thing that it's voluntarily abandoning during litigation, not moot. [00:36:25] Speaker 02: So with that express reservation in the last revocation of the mandate, why is that standard not met? [00:36:32] Speaker 00: I would think respectfully that the court is conflating two issues. [00:36:36] Speaker 00: There is the issue of, would the district, in order to preserve mootness in this case, have to forever waive the right to take action as an arm of the state to protect its students? [00:36:47] Speaker 02: Well, maybe you could have just been silent on the point, and then we wouldn't have had something to look at and wonder, what is the district thinking here? [00:36:52] Speaker 02: But where the district expressly reserves the right to do this again, it's hard to sort of skip right past that fact. [00:37:01] Speaker 00: Well, the obligation to protect its students under California Government Code 820 exists. [00:37:07] Speaker 00: And again, it's so easy today to look at what happened in Delta and what happened in Omicron and then what didn't happen next and say, well, gee, you shouldn't have to do this again, have you? [00:37:18] Speaker 00: But we didn't know. [00:37:19] Speaker 00: We didn't know. [00:37:21] Speaker 00: that Delta was coming before it did. [00:37:23] Speaker 00: We didn't know when Omicron came what it would look like. [00:37:26] Speaker 00: And we didn't know in the spring and the fall and the summer of 2023 that there wasn't going to be a gamma or a theta wave. [00:37:33] Speaker 00: And I do not think that the district is obligated to waive its powers to protect students in order to avoid mootness of a two-year expired mandate. [00:37:46] Speaker 00: I mean, there is no there there. [00:37:48] Speaker 00: It is not the role of this court [00:37:51] Speaker 00: to write the history book of COVID. [00:37:53] Speaker 00: It is not the role of this court to do a medical biography of COVID. [00:37:58] Speaker 00: It is the role of this court to decide active disputes. [00:38:03] Speaker 00: And this is not an active dispute. [00:38:04] Speaker 00: It just simply isn't. [00:38:06] Speaker 00: No other case has found that this is an active dispute. [00:38:09] Speaker 11: Does the fact that it's expired affect the reservation at all? [00:38:16] Speaker 00: Well, in my opinion, the COVID policy is sui generis. [00:38:22] Speaker 00: It was a dynamic action to a catastrophic problem. [00:38:27] Speaker 00: And so if the court were to say, well, what problem could arise tomorrow or the next day? [00:38:32] Speaker 00: I mean, the answer is, I don't know. [00:38:34] Speaker 00: But I think that LA Unified tomorrow or the next day would have the same opportunity to have a dynamic and forceful response to protect the safety of students. [00:38:44] Speaker 11: And again, I'm curious because in Brock wasn't there reservation there in that case? [00:38:52] Speaker 00: I'm certainly I do not recall precisely, but I'm certainly not aware that Governor Newsom waived his right to not close the schools again if he needed to. [00:39:01] Speaker 00: Again, I do want to address with the short time I have left. [00:39:04] Speaker 00: the merits issue about body autonomy and Jacobson and sucked. [00:39:08] Speaker 11: Can I ask you real quick? [00:39:09] Speaker 11: There's a lot of focus on the statement made on what are you going to do when we rescind the mandate? [00:39:15] Speaker 11: I'd like to give you an opportunity to respond to that. [00:39:19] Speaker 00: I think that that colloquy is saying nothing more than what the district was saying from the minute they put the vaccine policy in place. [00:39:28] Speaker 00: We are going to very, very seriously consider the need for this very, very serious measure at all times. [00:39:33] Speaker 00: And when we don't need it, we will get rid of it. [00:39:36] Speaker 00: And they were operating in an environment where in the summer of 2023, when there was no post-Omicron wave and the district court judicially noticed the improvement in the mitigation of COVID-19 steps, this court recognized in BRAC versus Newsom that public policy measures, including vaccine policies, [00:40:00] Speaker 00: did mitigate the impacts of covid they were simply saying well yeah we're going to keep looking at this and i think to split hairs and say well if they would have done it in 2024 then that would have been bad 2023 maybe a little bit better i don't think any of that is the test i think the test is today is there anything for this court to rule on jurisdictionally and i'd finally like to address the point of the [00:40:26] Speaker 00: body autonomy issue and the counterfactual. [00:40:29] Speaker 00: Jacobson gives this court everything that it needs to know to decide this case, because the Jacobson court spelled out in detail that there were people in the early 1900s who did not think that smallpox vaccines were effective in spreading the risk of smallpox. [00:40:46] Speaker 00: And Justice Harlan said that there is no principle that everybody believes in. [00:40:53] Speaker 00: The existence of a COVID counterfactual does not remove it from the rational basis test. [00:41:00] Speaker 00: The only thing that could remove this case from the rational basis test if there is a fundamental constitutionally ingrained liberty interest. [00:41:10] Speaker 00: And Justice Brandeis said in the Zucht case, [00:41:13] Speaker 00: Categorically, there is no constitutional right to decline to be vaccinated. [00:41:19] Speaker 00: It simply doesn't exist. [00:41:21] Speaker 08: And kind of ending my argument where- But the district court, in response to that argument, seemed to say it didn't matter if it was medical treatment, because even if it's medical treatment, Jacobson gives you broad public health authority. [00:41:36] Speaker 08: Does the district think that's correct? [00:41:38] Speaker 08: Does the district think it has the right [00:41:41] Speaker 08: for the safety and health and wellbeing of its employees to dictate their medical treatment? [00:41:46] Speaker 00: Well, I think, I think that the characterization of the COVID-19 shot as a medical treatment or as a vaccine is besides the point. [00:41:57] Speaker 00: I think from a common sense point that this court can rely on and judicially notice, medical treatments are typically things you do to yourself to cure something you have. [00:42:06] Speaker 00: If I have chemotherapy, [00:42:07] Speaker 00: It has no impact on the person sitting next to me, whereas vaccines are typically recognized to be things that you get when you don't have the disease. [00:42:16] Speaker 00: In fact, I think it is contraindicated to take a COVID vaccine if you have COVID, and the benefit is to protect the person sitting next to you. [00:42:24] Speaker 00: I think that is [00:42:26] Speaker 00: a common enough belief that this court can comfortably rely on. [00:42:29] Speaker 08: But load-bearing weight on transmission. [00:42:32] Speaker 08: And so you reject the district court's premise that there's an authority over medical treatments. [00:42:37] Speaker 08: It does rest on whether or not it's a substance that prevents transmission of disease to other persons. [00:42:45] Speaker 00: No, I don't think it rests on that because I, well, first off, I would say that the [00:42:51] Speaker 00: I understand under the well-pleaded complaint rule, you have to take everything that they say as true. [00:42:56] Speaker 00: But I think common sense dictates that everybody knows that if you're coughing and sneezing on people, you're transmitting. [00:43:02] Speaker 00: And if you're mitigating that symptom with a COVID vaccine, you are reducing transmission. [00:43:07] Speaker 00: But again, I think Jacobson and Zucht and all of the cases that follow it say, [00:43:12] Speaker 00: It's not for the courts to sort these things out. [00:43:15] Speaker 00: The question is, is there a reasonable basis for the state to take the action that it took to protect public safety? [00:43:26] Speaker 00: This court already decided in Brecht versus Newsom that vaccine policies was one of the measures that was reasonably taken to protect public safety and nothing [00:43:38] Speaker 00: Nothing about what has happened since the district lifted the mandate policy in the fall of 2023 changed that. [00:43:45] Speaker 07: And suppose, let me give you a hypothetical. [00:43:47] Speaker 07: Suppose back in 2021, a pharmaceutical company says there are some studies we've commissioned that shows that our drug mitigates the symptoms of COVID. [00:43:57] Speaker 07: And the pharmaceutical company donates to the governor, says access, and shows the studies. [00:44:01] Speaker 07: And the governor says, OK, great. [00:44:03] Speaker 07: We don't know how severe the symptoms may be when someone gets COVID. [00:44:09] Speaker 07: So everyone should get this. [00:44:12] Speaker 07: pharmaceutical drug. [00:44:14] Speaker 07: It doesn't prevent transmission, but mitigates the symptoms. [00:44:18] Speaker 07: For purposes of this, let's just call it ivermectin. [00:44:21] Speaker 07: Would, under your reading of Jacobson, put the governor impose a mandate saying everyone should get ivermectin because it reduces the symptoms of COVID and therefore, I guess, in your hypothetical, they'll cough less and they'll somehow prevent the transmission? [00:44:36] Speaker 00: You know, I think under that hypothetical, the state would have to prove that that is rationally related to the objective goal, I think. [00:44:43] Speaker 07: They have a study. [00:44:44] Speaker 07: You can always get a study. [00:44:45] Speaker 07: They show a study. [00:44:45] Speaker 07: The pharmaceutical company conducted a study and shows that it does reduce transmission. [00:44:51] Speaker 00: Well, in California, like, for example, one of the reasons why students didn't weren't required to get covid vaccines is because there is a statutory system in place to decide which vaccines people get. [00:45:03] Speaker 00: But I will say that there are there are vaccines and things like a tuberculosis test. [00:45:08] Speaker 00: A student must a teacher must take a tuberculosis test to work at L.A. [00:45:12] Speaker 00: Unified. [00:45:12] Speaker 00: So I don't know if it would go. [00:45:14] Speaker 00: all the way out to ivermectin, I suspect that it would not. [00:45:18] Speaker 00: And why is that? [00:45:22] Speaker 07: I'm just trying to understand your reading of Jacobson. [00:45:24] Speaker 07: Why would that not cover ivermectin? [00:45:26] Speaker 07: Well, because I think that there is... And for the purpose of hypothetical, there are some scientific studies that show it mitigates the symptoms. [00:45:32] Speaker 07: Would you accept that? [00:45:35] Speaker 00: I suppose I would say that that is conceivable. [00:45:40] Speaker 10: Council, isn't part of your answer the first sentence? [00:45:44] Speaker 10: In Jacobson, this case involves the validity under the constitution of certain provisions in the statutes of Massachusetts relating to vaccinations. [00:45:54] Speaker 10: Yes. [00:45:56] Speaker 05: What is the significance of any if there were no opt out provisions? [00:46:02] Speaker 05: So even in Jacobson, there were some provisions that allowed opt outs for people who received a small tax vaccination. [00:46:09] Speaker 00: Well, there have been a number of COVID cases involving government contractors that say, [00:46:13] Speaker 00: that the ultimate opt-out provision is to not work there. [00:46:17] Speaker 00: There is not a constitutional liberty interest in working for the government if you're unwilling to take the vaccine. [00:46:23] Speaker 00: So nobody here was being held down and told they have to get a vaccine. [00:46:27] Speaker 00: The question was, if you chose not to get a vaccine, then there would be an employment consequence to that. [00:46:35] Speaker 00: So I don't think we were dealing with a case of no opt-out whatsoever. [00:46:39] Speaker 00: In other words, this isn't like a, if a student doesn't get a measles vaccine, they might not be allowed into the school. [00:46:47] Speaker 00: It's not like that. [00:46:49] Speaker 00: I mean, I would, you know, I would just finally say, Judge Ali, that governments do need flexibility to respond to medical crises as they exist in a sensible way. [00:46:59] Speaker 00: We are seeing in real time what is happening in this country [00:47:03] Speaker 00: when vaccines are thrown to the curb. [00:47:06] Speaker 00: We're seeing it in Texas. [00:47:07] Speaker 00: We're seeing it in New Mexico. [00:47:09] Speaker 00: This is very, very dangerous. [00:47:11] Speaker 00: What my client sent me here to say to you today is that they were taking the most prudent measures they believe that they could take to protect the safety of children. [00:47:21] Speaker 00: That is job one. [00:47:23] Speaker 00: And there are many bodies of case law that say that while you do not check your constitutional rights at the courthouse steps, I believe that's the Tinker case, [00:47:33] Speaker 00: They cannot be expressed in the same fulsome way inside of a school campus that they can be in your home. [00:47:40] Speaker 00: And I think that is really the ultimate answer. [00:47:43] Speaker 01: Well, what's interesting, counsel, is we obviously preside over nine states. [00:47:49] Speaker 01: I can't help but think that if this case were in Idaho, it would be different than if it were in LA. [00:47:57] Speaker 01: But by the same token, people have very different, they do, you know, I think society, we all live in society, and people have very different attitudes about vaccinations. [00:48:10] Speaker 01: And maybe both of those views can be views that people hold in good faith. [00:48:16] Speaker 01: But I think LA certainly takes a different view than some other parts of our circuit in terms of that LA knows best. [00:48:27] Speaker 00: Well, I think I certainly agree with you, Your Honor, that there are different views in different parts of the circuit and in different parts of the country. [00:48:34] Speaker 00: But I would remind this court that [00:48:39] Speaker 00: The district is the second largest school district in the United States. [00:48:43] Speaker 00: It stretches from the Pacific Ocean to the innermost parts of the city of L.A. [00:48:49] Speaker 00: Many very, very vulnerable, highly impacted communities are served by L.A. [00:48:55] Speaker 00: Unified, communities with less access to health care and even to vaccines. [00:49:04] Speaker 00: than other parts of the community, and LA Unified had to try to make the very best decision to all of them. [00:49:10] Speaker 00: I would ask that when you consider this issue, you consider that, that the LA school district runs from the Pacific Palisades to Boyle Heights, and those are very, very different communities. [00:49:22] Speaker 00: And I would ask that you remember the context that all of this was decided in. [00:49:29] Speaker 00: I wanted to start my argument with this, but I guess I'll finish with it since I had two minutes. [00:49:34] Speaker 00: I think it's very, very important when deciding an issue about injunctive relief of a policy such as this that we each pause for one second and try to remember where we were and how we felt five years ago. [00:49:50] Speaker 00: Five years ago, March 11th, 2020, my son played in his last high school baseball game. [00:49:56] Speaker 00: We went to the field. [00:49:58] Speaker 00: The parents did not sit next to each other. [00:50:01] Speaker 00: They kind of looked at each other very suspiciously and furtively. [00:50:06] Speaker 08: In September of 23, council for the district stood up before the panel and defended a policy that required [00:50:16] Speaker 08: vaccinations then and exempted people who had two shots from 21 that everyone knew were no longer valid in 2023. [00:50:26] Speaker 08: That's the policy that was at issue and that was defended, not something from March of 2020. [00:50:33] Speaker 00: I would respectfully say that the history book of COVID-19's vaccination efficacy remains to be written. [00:50:40] Speaker 00: There is an enormous amount of literature that says even one vaccine will have a significant impact on a person's immunological response to one COVID infection or the next one. [00:50:52] Speaker 00: And I would implore the court to not engage in that historical writing or to ask the district court to go back and to try to do it. [00:51:01] Speaker 00: but to rather say, here we are, thankfully, so thankfully, in 2025, that we're not in the same place that we were today, that we can hopefully put this behind us and hopefully learn from it. [00:51:12] Speaker 00: So if there is another medical health crisis, and I believe I said to you, cases capable of repetition come on a cadence. [00:51:20] Speaker 00: If the cadence of this type of crisis is every 100 years, we'll all be very thankful and very lucky. [00:51:25] Speaker 00: And I do want to say that I believe that my client [00:51:30] Speaker 00: did its level best with the information it had, talking to experts all over California, Stanford, UCLA, to try to do the best thing. [00:51:39] Speaker 00: But whether you agree that it was not soon enough, not vigorous enough, not what you might have done, in 2025, we stand in one place. [00:51:49] Speaker 00: No vaccine policy, nothing to enjoy. [00:51:53] Speaker 00: Thank you. [00:52:07] Speaker 06: Your honors, I have just a few points to make in closing today. [00:52:12] Speaker 06: First off, if we get the chance to go back to the district court, we will explicitly seek reinstatement for those plaintiffs who have not been reinstated to their former jobs. [00:52:25] Speaker 06: And we will seek monetary damages. [00:52:28] Speaker 06: We will seek to litigate this sovereign immunity issue now under Cohn based in part on what [00:52:35] Speaker 06: something Judge Callahan mentioned earlier, which is the needless extension of this policy far beyond others and far beyond what was reasonable until it was clear to the district that it was going to lose in court. [00:52:53] Speaker 06: And I want to point out two things. [00:52:56] Speaker 06: I'm referencing the panel's opinion here because this is the easiest place for me to find it. [00:53:01] Speaker 06: Two things that I think were critical in the [00:53:04] Speaker 06: in the mootness analysis. [00:53:05] Speaker 06: They were comments made not just by Miss Michaels to my law partner, Mr. Howard, after the argument, but also statements made by board members when they voted to repeal this policy. [00:53:16] Speaker 06: I'm reading from page 722 of the panel's opinion. [00:53:20] Speaker 06: These are the record sites. [00:53:22] Speaker 06: One statement from a board member who was, quote, not afraid of litigation or the, quote, zealousness that will come out with lawsuits, which seems to be a reference to potential future challenges. [00:53:33] Speaker 06: A comment by board president Jackie Goldberg that when she voted, she voted reluctantly yes. [00:53:43] Speaker 06: And I would also echo comments made by some of the amici, the state attorneys general in this case, that seem to suggest a desire to do [00:53:52] Speaker 06: to institute policies like this in the future. [00:53:54] Speaker 06: What this all leads up to, Your Honors, is what the panel called, and I'm reading from now end of page 722, 723, LAUSD's pattern of withdrawing and then reinstating its vaccination policies, which of course [00:54:13] Speaker 06: is part of the record here, not just what happened at oral argument and immediately after the oral argument, but what happened before, what happened in response to the first policy that was instituted, quickly withdrawn after a lawsuit was filed, and then reinstated, prompting another lawsuit. [00:54:30] Speaker 06: So that's the record on which we have to focus today. [00:54:34] Speaker 06: And I think that is exactly, that takes this case out of all of the other mootness cases where we had repeals accompanied by [00:54:43] Speaker 06: statements that suggested the policies, whether because of their breadth in the case of Governor Newsom's business closure orders, are just on their face inherently unlikely to recur again. [00:54:55] Speaker 06: I want to make two other points before I finish. [00:54:58] Speaker 06: First, the issue, Judge Collins, that you raised with the Cone case. [00:55:04] Speaker 06: I would, first of all, I would encourage, I would discourage this court from doing a full sovereign immunity 11th Amendment analysis since we haven't pleaded that claim yet. [00:55:14] Speaker 06: We would like to plead it in the district court. [00:55:16] Speaker 06: We would like to litigate that issue. [00:55:17] Speaker 06: We would like to create an evidentiary record that perhaps may come back up to this court at some point. [00:55:23] Speaker 06: But one of the things I noticed in Cone, and I think it's important when we look at school district sovereign immunity liability, and this is responding to the issue that we [00:55:33] Speaker 06: that we briefed through supplemental briefing is the importance of both not just the funding, the way school districts are funded in California, but the dignity interest and this idea of who is really deciding things and what is the state on the hook for or not on the hook for. [00:55:53] Speaker 06: And I noticed a reference in a case was cited by the state attorneys general and their amicus briefcase, but versus state of California. [00:56:02] Speaker 06: Page 681 of that decision talked about what the state is and is not vicariously liable for with respect to local school districts. [00:56:15] Speaker 06: And it pointed out that among other things, the state is not vicariously liable for torts committed by local school district officials. [00:56:26] Speaker 06: And it pointed out that the state is not vicariously liable [00:56:30] Speaker 06: for breaches of contract committed by local school district officials. [00:56:35] Speaker 06: So this idea, there needs to be a grappling, I think, at some point, really a revisiting of this court's decisions in Bellinger and Sado and a full analysis of what's really going on here. [00:56:50] Speaker 06: Where is the money coming from? [00:56:51] Speaker 06: Who has the control to reconcile what this court has said with respect to California school districts [00:56:59] Speaker 06: and what it said with respect to virtually every other school district that I know of, Arizona, Alaska, Nevada, and what other circuits have said with respect to no sovereign immunity, no 11th Amendment immunity extending to school districts in other states. [00:57:17] Speaker 06: Finally, unless the court has any other questions, there's one thing that I wanted to point out, two things I wanted to point out about Jacobson because [00:57:28] Speaker 06: Today is March 18th of 2025. [00:57:30] Speaker 06: I know that's my sister's birthday yesterday, so it's easy for me to keep track of. [00:57:34] Speaker 06: But it was five years ago that I first read the Jacobson opinion. [00:57:40] Speaker 06: And I noticed something at the end that I think is important for us to remember here today. [00:57:47] Speaker 06: It's a statement from the court in Jacobson that, quote, we now decide only that the statute covers the present case and that nothing clearly appears that would justify this court [00:57:57] Speaker 06: and holding it to be unconstitutional and inoperative in its application to the plaintiff in error. [00:58:03] Speaker 06: So I think when you take that language and you take it in context and you consider all of the case law that has come down in the 120 years since the Supreme Court decided Jacobson, I think it is clear that my clients have a right under the law to plead this substantive due process claim, both with the relief they seek now, with the relief they already sought [00:58:26] Speaker 06: plus reinstatement, plus damages, and to have a chance to litigate that case on the merits. [00:58:33] Speaker 06: There's one other thing about Jacobson that I think is important to remember, because when I first read Jacobson five years ago, that also led me to a case called Buck versus Bell, decided I think in 1925, in which Justice Oliver Wendell Holmes famously said that the principle that justifies compulsory vaccination [00:58:55] Speaker 06: also supports cutting the fallopian tubes. [00:59:00] Speaker 06: Quote, three generations of imbeciles are enough. [00:59:05] Speaker 06: I'd like to think that we as a society have progressed in the 120 years since then. [00:59:11] Speaker 06: And even though I think there are ways to reconcile Jacobson and to put it in its proper historical context, proper constitutional context as a balancing test, I think we need to apply that test [00:59:24] Speaker 06: in a way that takes account for all of the developments in constitutional law since the early 20th century, including the privacy law of the 1960s and beyond. [00:59:35] Speaker 06: That's all we ask for, and unless the court has any other questions, I'll see the rest of my time. [00:59:44] Speaker 11: Thank you. [00:59:44] Speaker 11: Thank you. [00:59:46] Speaker 11: Mr. Street, Mr. Jacoby, thank you very much for your oral argument presentations here today. [00:59:51] Speaker 11: The case of Health Freedom Defense Fund versus Alberto Carvalho is submitted and we are adjourned. [00:59:57] Speaker 11: Thank you.